24 February 1999
(Kaplan calls for protection for "whistleblowers") (2125)
Washington -- Unless those in government willing to provide
information on corruption ("whistleblowers") are given protection,
efforts to stamp out government corruption will not be successful,
says Elaine Kaplan, special counsel in the U.S. Office of Special
Counsel.
"I think it is fair to say -- without effective protections for
whistleblowrs -- any anti-corruption efforts is doomed to fail because
it denies those seeking to root out official corruption the most
valuable source of information about its existence -- public
employees," Kaplan said February 24.
Kaplan was addressing delegates from some 80 countries meeting here
for Vice President Gore's "A Global Forum on Fighting Corruption:
Safeguarding Integrity Among Justice and Security Officials."
Kaplan said what while public employees enjoy access to information
about government corruption, they are also extremely vulnerable to
retaliation by the officials and institutions whose corruption they
have disclosed.
Kaplan outlines how the Office of Special Counsel has worked in the
United States and approaches other countries need to consider to
assure that "personnel actions" against employees seeking to address
corruption are prohibited.
Following is the text of Kaplan's remarks as prepared for delivery:
(begin text)
WHISTLEBLOWER PROTECTION IN THE UNITED STATES GOVERNMENT
Presented by Elaine Kaplan, Special Counsel, U.S. Office of Special
Counsel, at the Vice President's Conference on Fighting Corruption
Among Justice and Security Officials (February 24, 1999)
1. The Role of the Whistleblower in the Fight Against Government
Corruption
I have been asked to discuss with you today the concept of
whistleblower protection and the role it plays in the fight against
government corruption. I think it is fair to say that -- without
effective protections for whistleblowers -- any anti-corruption effort
is doomed to fail because it denies those seeking to root out official
corruption the most valuable source of information about its existence
-- public employees.
The policies that underlie whistleblower protection laws are clear.
They are designed to foster an environment in which public employees
feel free to publicly disclose misconduct that they discover during
the course of their employment -- through public disclosure, the
misconduct will be discovered and corrected. In addition, official
misconduct will be deterred because the offenders will know that their
actions will not go undetected.
The theory is that public employees -- because of their work -- are
uniquely situated to bring attention to official corruption -- they
are valuable instruments of good government.
At the same time, unlike private citizens in a democracy, they are
uniquely vulnerable to retaliation by the very officials and
institutions whose corruption they have disclosed. At the one extreme,
those officials have the power to take away a whistleblower's
livelihood and destroy their professional reputation. Or they can, in
more subtle ways, make their daily work lives miserable by isolating
them or denying them work assignments and opportunities for
advancement.
In the United States, we call these employees -- who risk their
livelihoods to bring misconduct to light -- "whistleblowers": The word
itself is of relatively recent origin. It seems to have come into use
sometime in the late 1960s or early 1970s. Its basis is clear -- like
a police officer or soccer referee -- a whistleblower makes a loud
noise to bring attention to a violation of the laws or rules.
I have been told on occasion that in some cultures, there is a
negative connotation to blowing the whistle -- that another name for a
"whistleblower" is "informer." Informers, of course, are generally
feared and disdained. But they are different from whistleblowers.
Informers act at the behest of officials, and in their own
self-interest. Whistleblowers generally are viewed as
anti-authoritarians who act in the public interest, often against
their own self interest.
Our popular culture reflects the high esteem in which we hold
whistleblowers. In the United States, popular movies such as "Serpico"
and "Silkwood" have been made about whistleblowers. The films and
popular literature glorify the individual who takes on the system at
great personal risk. In our culture such individuals are viewed as
heroes.
As I now describe, our laws and legal institutions similarly reflect
the value we give to whistleblowers.
2. The Role of the U.S. Office of Special Counsel in Protecting
Government Whistleblowers
My agency, the United States Office of Special Counsel (OSC), was
established about 20 years ago, with one of its primary purposes the
protection of whistleblowers.
a. OSC was established in the wake of well publicized allegations of
retaliation by federal agencies against employees who publicly
disclosed wasteful spending and contract abuses -- particularly in the
defense agencies. A perception arose that employees felt intimidated
and, notwithstanding their awareness of corruption and official
misconduct, would not go public for fear of losing their jobs. It was
felt that public employees needed legal protection and, moreover an
advocate that could enforce those protections.
b. OSC's job is to receive complaints of retaliation, investigate
them, and, in appropriate cases, pursue legal remedies. These include
corrective action for the injured employee (for example reinstatement
to their jobs, backpay, and other forms of compensation). The remedies
OSC may seek also include the discipline of agency officials who
engage in such retaliation. An independent adjudicatory agency -- the
Merit Systems Protection Board -- resolves complaints that OSC brings
against other federal agencies, with some opportunity for review in
our federal courts.
In addition, OSC also serves as a channel for employees to anonymously
disclose official misconduct. While each federal agency has an Office
of Inspector General that is devoted to receiving such disclosures,
OSC has government-wide jurisdiction. It can receive disclosures from
any federal employee and, in appropriate cases, forward them to the
head of the relevant federal agency for an investigation and report
which becomes a public document and is transmitted to the President
and our Congress.
c. We are an interesting sort of government agency because we are
independent of the executive branch. I was appointed by the President,
with the approval of the U.S. Senate. But I do not serve at the
pleasure of the President. I have a fixed term of five years and I can
only be removed for misconduct or malfeasance. My staff is composed
largely of career federal employees who have civil service protections
that prevent them from being subject to political control.
The reason we are given this unique status is to ensure. as much as
possible. that we ourselves will not be subject to influence or
pressure when we conduct our investigations or make prosecution
decisions. We must be able to advocate on behalf of the lowest level
employee of a federal agency against officials at the highest levels,
including cabinet secretaries.
We must also be able to take positions on behalf of whistleblowers
that may be disfavored by other federal agencies. OSC, in fact,
recently took such a position in a case before the Merit Systems
Protection Board, in which we are arguing that the revocation of a
security clearance is a "personnel action" and that, as such, a
retaliatory clearance revocation may be found illegal by that Board.
In that case, we are being opposed by our Department of Defense,
Department of Justice and Intelligence agencies, which believe that
such national security related decisions should never be subject to
third party review.
3. Whistleblower Protection Law
a. Employees Covered
The laws that OSC enforces cover the majority of federal employees,
including those in law enforcement positions. This includes our
customs service, our border patrol, our drug enforcement
administration and federal police officers. Our jurisdiction does not
extend to certain agencies whose work is exclusively national security
related, or to the FBI (which now has its own set of internal
protections for whistleblowers). Our jurisdiction also extends to
claims made by applicants for federal jobs.
b. Legal Protections Provided
The laws we enforce make it illegal to take a "personnel action"
against an employee because the employee has made a protected
disclosure. The law is intentionally broad in its definition of what
sorts of disclosures are protected and in what constitutes a
"personnel action." It was also written in such a way as to make it as
easy as possible to prove the relationship between the disclosure and
the personnel action. It is fair to say that the law was written to
ensure that all doubts are resolved in favor of protecting an
individual who makes a public disclosure.
A protected disclosure is the disclosure of any information that an
employee reasonably believes evidences a violation of law, rule or
regulation, a gross waste of funds, gross mismanagement, an abuse of
authority, or a significant and specific danger to public health or
safety. A disclosure can be made to any person in order to be
protected. It need not be made through some prescribed channel. It is
important that a disclosure need not be accurate in order to be
protected -- it is enough if the person making it is acting in good
faith and with a reasonable belief in its accuracy. If protection
depended upon accuracy it would clearly chill employees from making
disclosures.
A personnel action is virtually any employment related decision that
has an impact on an employee at the worksite. Such actions range from
removal to the denial of promotions, details or training
opportunities. They include geographic reassignments, and even the
creation of a hostile working environment.
Causation is shown by establishing that an employee's protected
disclosure was a contributing factor in a personnel action -- we do
not have to show that it was dispositive or even significant. The
contributing factor test is important because it is rarely clear that
a personnel action was taken solely for purposes of retaliating. An
employer can almost always articulate legitimate reasons for a
personnel action. Those legitimate reasons may exist in conjunction
with the retaliatory motive. But because we want to resolve every
doubt in favor of the whistleblower, the personnel action will be
found illegal unless the employer can provide clear and convincing
evidence that he would have taken the same action even if the employee
had not engaged in protected activity.
C. The Complaint Process:
The Office of Special Counsel investigates complaints filed by
employees who allege whistleblower retaliation. In 1998, we received
about 600 complaints alleging whistleblower retaliation.
We employ a staff of professional investigators who have the power to
compel witness testimony and the production of documents.
We also have the power to request a stay of a personnel action, before
the completion of our investigation, where we have reasonable grounds
to believe retaliation has occurred. This is important because it
enables us to get quick relief for an employee who is threatened with
irreparable harm.
Our attorneys review the investigators' reports to determine whether
an illegal personnel action has occurred. If we determine that it has,
then I send a letter to the head of the agency requesting voluntary
corrective action. If the agency does not comply, then my office
prosecutes the case. An evidentiary hearing is held and a decision
issued by an administrative judge, with appellate review by the Merit
Systems Protection Board (MSPB), a three member administrative board.
If the whistleblower does not prevail, he or she may take an appeal to
court. The agency, however, generally has no right of appeal.
If we do not believe that retaliation has occurred, OSC will close the
case. That is not necessarily the end of the matter, however. Because
it is so important to protect whistleblowers, the law provides that
persons alleging whistleblower retaliation can pursue an individual
right of action before the MSPB after they have exhausted their
remedies before OSC.
As I mentioned earlier, OSC has another important power -- the power
to seek disciplinary action against an agency official who has engaged
in retaliation. OSC may file a petition with the Merit Systems
Protection Board asking that it order discipline against such an
official with sanctions as severe as removal from federal employment.
Our disciplinary action power is intended to deter and punish
retaliation.
Conclusion
In conclusion, as I have described, providing legal protection to
whistleblowers is a key component of any systematic effort to root out
corruption in government institutions. In the United States, we
believe that our scheme of legal protections, in conjunction with
independent investigation and review of allegations of retaliation,
provides whistleblowers with strong assurances against retaliation and
encouragement to come forward and speak out in the public interest.
While no system of whistleblower protection is fool-proof, there is no
question that -- in the absence of any legal protection -- the public
would lose the benefit of the surest source of information about
corruption: the government employee with the integrity and courage to
reveal it.
(end text)